Privacy, email and clean pants

FOI Man looks at whether Civil Servants should be concerned about invasion of privacy if emails in private email accounts are subject to FOI.

Hi, I’m back. My apologies for being away longer than promised, you and my other three readers (readership has gone up in my absence, so perhaps I should learn something from that) must have been worried. It turns out that major life rituals and transferring ownership of property and physical belongings are the equivalent of kryptonite for the blogging information superhero. (Not, he says hurriedly, that any of those things are bad for me in themselves, just that together they have prevented me finding the time to blog). *drops shovel*

Of course, this isn’t news. If you think back, way back, as far as two or three months ago, this very issue was being discussed in relation to the Education Secretary, Michael Gove. And right here on these very pages I explained that, yes, information in personal email accounts, and indeed any information held anywhere, could be subject to FOI if it related to the public authority’s business. It makes sense. If this wasn’t the case, all Civil Servants and Government Ministers’ houses would have collapsed under the weight of the paperwork ‘rescued’ from the office and nobody would ever use official email accounts for anything.

However, there is an obvious – and good – question here and this morning I was asked it. If personal email accounts are covered by FOI, who checks these accounts? Are public officers not entitled to any privacy?

The answer is that of course they are. Firstly, the same rule that is interpreted to mean that emails in private email accounts are subject to FOI, also means that personal emails in work accounts aren’t covered by FOI. As with much law, it comes down to a matter of interpretation. Whether it is covered by FOI or not depends on whether the person who is looking for the emails takes the view that they are personal or business related.

Secondly, in practice, whether you provide emails to answer an FOI is still, largely, a matter of conscience. Many public authorities are physically not able to search across even their own official email accounts. Even if they can, the expense can be immense, and may lead to an authority refusing a request where this was a necessity. And then there are the legal and moral constraints of privacy, data protection and so on. As I’ve written before, FOI Officers still rely for the most part on colleagues providing relevant information on request. Since this is the case for information held physically within the authority’s buildings and in its own email accounts, there is little prospect of your friendly neighbourhood FOI Officer turning up with heavies to demand access to your private email account.

So why should public officials provide emails from private accounts when answering FOI requests? What can make them? Mainly, as with many things, it comes down to conscience and professionalism. If it was later found that they’d deliberately withheld relevant emails even though they knew that they were subject to the legislation, then section 77 comes into play – they would be guilty of a criminal offence and could be taken to court and receive a fine. How many people have been even charged with this offence since 1 January 2005? A big fat zero. So there are many reasons why Civil Servants need not be concerned to bring a spare pair of underpants to the office this week.

5 comments

Isn’t the most disturbing thing here that civil servants ever thought they were not covered? I worked in FOI in a large public authority since before day zero and it was always clear to us that it did – and to all the other FOI officers I have dealt with over the years. Which is why before day zero we banned the use of such accounts for work related email, save in unavoidable exceptional circumstances, and stipulated that in such cases the official email account must always be cc’d (or forwarded to) – the latter avoiding the need for us to have to get into the privacy issues.

[…] The Information Commissioner’s Office (ICO) has published new guidance [PDF] “making it clear that FOI laws cover relevant information even when stored or sent on private accounts or devices“, reports Out-Law.com. FoI Man comments on the practicalities of the announcement here. […]

Agreed that it’s almost certainly more likely to be the senior advisors and politicians who “don’t understand” (case in point: Oliver Letwin …)

I am appalled that even basic Data Protection training is not mandatory for MPs (especially given their rights to obtain information about any constituent who contacts the MP, without said constituent’s consent …) – let alone information governance matters (including FOI) ‘in general’.

About FOIMan

Paul Gibbons has two decades of information management experience in the UK Parliament, Greater London Authority, Pfizer, the NHS, local government and higher education. Best known for his FOIMan blog, he also writes for the Freedom of Information Journal and has featured in the Daily Telegraph, Times Higher Education and on BBC Radio.

Important note: Paul is not a lawyer, so nothing said here, on Twitter, or in correspondence, should be taken as legal advice.

Freedom of Information Journal

Paul writes for PDP's Freedom of Information Journal. Find out how to subscribe by clicking on the image below.